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The General Assembly amended G.S. 14-208.18, the law that makes it a Class H felony for certain registered sex offenders to go certain places. The changes are a response to Doe v. Cooper, a federal case in which the trial judge enjoined every district attorney in the state from enforcing the parts of the law he found to be unconstitutional. Today’s post takes a look at the revised law.

As a reminder, the prior version of G.S. 14-208.18 set out three types of places that certain registered sex offenders may not go. Those types of places were described in three statutory subdivisions, (a)(1), (a)(2), and (a)(3), which said that covered offenders could not knowingly be:

(a)(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.

(a)(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.

(a)(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

The law applied to two categories of sex offenders:

Article 7B offenders: Those convicted of any offense in Article 7B of Chapter 14 (rapes, sexual offenses, sexual activity by a substitute parent or custodian or with a student, and sexual battery) or a substantially similar offense federal offense or offense from another state, and

Minor-victim offenders. Those who committed an offense where the victim was under the age of 16 at the time of the offense.

I discussed the trial court orders in Doe in two previous posts. The first post, here, covers the order issued in December 2015, 148 F. Supp. 3d 477 (M.D.N.C. 2015), in which the court found that subdivision (a)(3) is unconstitutionally vague as a matter of constitutional due process. The second post, here, covers the order issued in April 2016, in which the court found that subdivision (a)(2) (the “300 foot rule”) is unconstitutionally overbroad under the First Amendment. The judge permanently enjoined the enforcement of both of those subdivisions. Subdivision (a)(1) was upheld and remains enforceable.

The legislature enacted Session Law 2016-102 to address the constitutional infirmities found in the Doe case. What does the revised law say? And do the revisions effectively address the constitutional issues? Let’s go subdivision by subdivision.

Applicability based on victim age. For all of the crimes set out in G.S. 14-208.18, the minor-victim offender eligibility category is broadened so that the law applies to any registered sex offender whose victim was under the age of 18 at the time of the offense. Under prior law the relevant age was 16. The Article 7B offender category is unchanged, except for a new requirement applicable only to subdivision (a)(2), discussed below.

Subdivision (a)(1). The revised law makes no changes to subdivision (a)(1) itself. That provision was never deemed unconstitutional, and thus presumably remains enforceable as it was under prior law.

Subdivision (a)(2). The language of the 300 foot rule itself is unchanged. What has changed under the revised law is the subcategory of registered sex offenders to whom subdivision (a)(2) applies. Under the revised law, subdivision (a)(2) only applies to Article 7B offenders when “a finding has been made in any criminal or civil proceeding that the person presents, or may present, a danger to minors under the age of 18.” G.S. 14-208.18(c)(2)a.

The reason a federal judge found the prior 300 foot rule to be unconstitutionally overbroad was that it was poorly tailored to further the state’s interest in protecting children: it applied to some offenders who never committed a crime against a child. To the extent that the law swept too far, it wound up punishing a substantial amount of protected free speech, judged in relation to its plainly legitimate sweep.

The new eligibility criteria probably remedy that overbreadth by limiting crime to minor-victim offenders and offenders specifically found to pose a danger to minors. It strikes me, though, that the revisions come with a cost to simplicity and administrability. For example, a person on the registry for a rape or sexual offense committed against a 20-year-old victim will be subject to the 300 foot rule only if a judicial official has, at some point, made a finding in a prior criminal or civil proceeding that the person is or could be a danger to minors. A law enforcement officer or prosecutor considering charging a 300 foot rule violation by such an offender would need to verify that, at some point, such a finding was made.

Subdivision (a)(3). The federal court found subdivision (a)(3) to be unconstitutionally vague because it did not define a criminal offense with sufficient definiteness that ordinary people could understand what conduct is prohibited. The court was especially troubled by the “regularly scheduled . . . program” language, as it gave no guidance on how often such a program would need to occur to render a place off limits. It also gave no examples of the type of places the legislature had in mind.

Revised subdivision (a)(3) addresses both concerns. It replaces the “regularly scheduled” language with a prohibition on being at any place where minors “frequently congregate.” Is “frequently” less vague than “regularly scheduled”? Probably. “Regularly scheduled” could include rare but nonetheless regularlyscheduled gatherings, like a once-a-year Easter egg hunt, that could render an otherwise non-kid-focused place off limits at all times. A requirement for “frequent” gatherings of minors seems at least a little more focused. Moreover, the revised statute provides a list of examples (libraries, arcades, amusement parks, recreation parks, and swimming pools), and clarifies that those types of places are restricted only when the minors are actually present. Similar language from other jurisdictions—cited in the Doe case itself—has survived constitutional challenge. See, e.g., United States v. Taylor, 338 F.3d 1280 (11th Cir. 2003) (upholding a Florida probation condition that referenced areas “where children frequently congregate”).

One additional thing that occurs to me about subdivision (a)(3) is that because the federal court found it to be vague, it did not go on to consider the plaintiffs’ First Amendment overbreadth challenge to that part of the law. Even if the revised version is now clear enough to not be vague, I wonder if it will now be challenged as overbroad—especially when it continues to apply to adult-victim Article 7B offenders for whom no dangerousness finding has been made.

Subdivision (a)(4). New subdivision (a)(4) bars Article 7B offenders and minor-victim offenders from being on the State Fairgrounds during the State Fair, on the Western North Carolina Agricultural Center during the Mountain State Fair, and on any other fairgrounds when an agricultural fair is being conducted.

Effective date. The revised law comes into effect on September 1, 2016, and applies to offenses committed on or after that date. As of now, prosecutors are still enjoined from prosecuting earlier offenses under subdivisions (a)(2) and (a)(3). If, however, either injunction is stayed or overturned by a higher court on appeal, the changes in the new law relevant to that subdivision are repealed, and the appropriate portion of the prior law is effective once again. S.L. 2016-102, sec. 2. The State has indeed appealed the April trial court order from the Middle District, but to my knowledge the Fourth Circuit has not issued any stay of the injunction.

The effective date clause does not limit that conditional repeal of the new law to the pendency of a stay, leading me to wonder what happens if one were issued but then lifted. At that point would the new version of the law kick in once again? I guess we’ll cross that bridge when and if we get there. For now, suffice it to say that officers, prosecutors, judicial officials, and defendants dealing with G.S. 14-208.18 after September 1 will want to keep a careful eye on the Doe case as it moves forward, to be sure they are applying the proper version of the law.

Ed

July 28, 2016 at 3:55 pm

Still seems too vague. Libraries, arcades, amusement parks, recreation parks, and swimming pools – are these the ONLY areas off limits, or are these just more examples that leave one to GUESS what “other premises” share similarity? What is a recreation park? A kid’s park with a merry-go-round, or an adult-focused walking trail with “park” in the name, nothing but trees, benches and walking trails? How does one determine public libraries primarily exist for children? How is that argument made?

Krystle

July 11, 2018 at 4:10 pm

I would also like to know! My husband is a registered sex offender, and I PERSONALLY went to the Sheriff’s Dept to inquire about this…the only response they gave me was the book you get when you offend, and that one paper that states exactly what the above implies is so vague. Sometimes, there are church activities where the nurseries aren’t being used…I also asked if he could go onto the nature trail behind the local community college b/c that is where we used to walk for daily exercise. I asked my therapist about what places my husband and I could go for recreation. She texted a probation officer she knew and he said that they were allowed on beaches, state and national parks, and confirmed the boardwalk/nature trail. I still don’t trust what they both said without a black and white document with their signature and date on it.

Chris F

July 29, 2016 at 9:11 am

I don’t understand how any restrictions can be placed on “registered” sex offenders.

It should be a constitutional violation of Due Process to subject anyone to a deprivation of liberty after they have completed probation and re-entered society unless they have specifically had a fair hearing to determine that they are a current threat to society.

Look at this case for instance:

U.S. v. DAVIS•452 F.3d 991, 995 (8th Cir. 2006)

Federal law requires the district courts to consider the “nature and circumstances of the offense and the history and characteristics of the defendant” when crafting a special condition of supervised release. See 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); cf. United States v. Heidebur, 417 F.3d 1002, 1004-05 (8th Cir. 2005). That inquiry must take place on an individualized basis; a court may not impose a special condition on all those found guilty of a particular offense.

Appropriating the reasoning from DAVIS permits Plaintiffs to argue that if a probationer may not have special conditions imposed on all those found guilty of a particular offense, then a person who has completed probation and been determined fit for release into society has the same, if not greater, interest in being free from restrictions imposed on all persons defined as “sex offender” when the term “sex offender” refers to not just one particular offense, but a large group of offenses arbitrarily chosen by legislature to have a sexual component, and for an arbitrary duration unrelated to an individual’s present dangerousness.

Rory Fleming

July 29, 2016 at 9:27 am

Also, distance approximation difficulties + contradiction between sexting and sex for age of consent restrictions. The latter makes the case for this not being about public safety so much as it is about public hate.

Gary dial

December 14, 2017 at 9:59 am

How can u punish someone an sentence with out giving them a chance to defend themselves? When the court put restrictions on our movement without a trial it is a direct violation of our constitutional rights.

AcualAmerican

July 29, 2016 at 9:37 am

People who support residency and/or presence “restrictions” are not Americans. They are immoral, un-American, harassing terrorists who are at war with all good Americans. Americans must neutralize them.

And for some reason, the terrorists want people who have SHOT CHILDREN WITH GUNS IN SCHOOLS, PARKS, ETC., to live right next door to those places. I guess they want them to get better shots next time? They also want people who have run meth houses and blown them up to be right next to schools. I guess to be close to their customers? They also want people who drive drunk during the day to be by schools. Why? The terrorists want people who have gotten angry that children were crossing their lawns and then beat them nearly to death with a shovel to live next door to schools, parks, etc. I guess so they can murder children?

Why is that the terrorists want anyone who has committed any type of crime to live next to schools, parks, etc. unless it was a sex crime? The reason is because their un-American harassment has nothing to do with “public safety”, “protecting children”, or any of those other lies that they tell.

We need to do more than neutralize the terrorists, we need to get them out of America.

Krystle

Krystle

Ed

August 3, 2016 at 11:52 am

Do we have any answers about the legal definition of said premises posed in my initial question? And what is the most-likely constitutional angle of the next lawsuit based on the implementation of the updated law?

NC Reform SO Laws (NCRSOL) is a new chapter here in NC and we need your help. We are in the progress of working with a very experienced attorney to challenge the unconstitutional nature of the new law – HB1021 – regarding premise restrictions.

How can YOU help? Support NCRSOL. We need you to become a member by joining. We also need financial donations – ANY AMOUNT – to help with legal expenses. We have a big fight ahead, as this is unfair and unjust.

Please go to http://www.ncrsol.org and support us by:
(1) donating any amount (seriously – any amount!!!)
(2) becoming a member to receive info from the chapter
(3) sharing this site and our organization with others, as we are a new chapter looking to grow
(4) contacting NC Reps ad Senators to voice your concerns over these laws
(5) volunteering to help

Thank you for your help – we really need support behind us as this is a difficult fight.

Unknown

Chris

January 23, 2018 at 6:18 pm

Just saw on the NARSOL website that there has been a hearing date set for Feb 6th in Winston-Salem to hear the state’s motion for dismissal. NCRSOL’s attorney will be present to argue against the motion. They suspect most of the suit will pass through the motion. Personally, I think the US Supreme Court’s refusal to hear two significant victories for registered citizens (Snyder v. Does and Pennsylvania v. Muniz, Jose A) will have an important impact on NCRSOL’s case going forward.

dale

August 26, 2016 at 8:50 am

Just some questions on the new law. Who decides if there is a violation? Does a sex offender have to leave a pool if a child comes with their parent even though when he or she arrived there were no children at the pool? If it is in an apartment complex, does the offender lose all rights to the pool? At a park, can an offender run by a ball field occupied by children as he goes to his car? What if he is in the adult side of a library with a separate entrance? When does a violation occur? When the offender goes to the pool or park, gets within a certain number of feet or actually sits on a bench at the ball field? Seems that the legislature did not see that their law is now even more vague and less enforceable.

Registered SO

October 7, 2016 at 7:55 am

“Swimming pools” can be public or private. Is a sex offender with a crime against a minor banned from a private pool, such as one in a neighborhood with a Home Owners Association, where the SO pays his or her HOA dues? What about a pool in your own back yard, on your owned property?

ZAC

February 1, 2017 at 9:14 pm

MY READING OF THE LAW IT DOES SAY THAT IT ONLY APPLIES TO CASES AFTER SEPT 1, NOT TO CASES THAT HAPPENED BEFORE IT. SO SHOULDN’T THAT MEAN IF A CASE WAS BEFORE SEPT 1 THAT THE OLD LAW WOULD APPLY TO THEM NOT THE NEW ONE.

Teresa Nuttall

George

July 3, 2018 at 2:24 pm

I wish I knew. I attended a church where the nursery operated only 45 minutes on Sunday morning during service. I have been told that I can’t attend church even on evenings when the nursery is no open.

Former SO Register

August 14, 2018 at 6:47 am

The same children would of been in the church if they didn’t removed them so the parents could focus on God in service with no distractions. This only applies to operating daycares that operates. You can’t be in the nursery. One church, I know about, build separate buildings for adults services.

Former SO Register

August 14, 2018 at 6:54 am

It depends on your level. If you are established as a predator, if your charge actually was against someone under a certain age, etc. There are stipulations to the law that is enforced in some countries because of their interpretation of the laws. That the main problem with these laws. They are leaving too much room for counties like Cumberland to interpret what they want and enforce it.

[…] burdensome restrictions on its registrant population as evidenced by its recent passage of a revised premises statute (§ 14-208.18) even despite significant push back from the federal courts [place link to Fourth Circuit Does […]